Article(s) in Directive 2014/24/EU: Art. 47, Art. 56
Topic: Regularity of the legal decision based on public procurement rules instead of concessions; Reject of tenderer’s application
Member State: France
Court/rev. board: Conseil d’Etat
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 56 of Directive 2014/24/EU was implemented, regarding the regularity of the tender and its submission within the time limits laid down in the tender documents, by the Public Procurement and Concession Contracts Code, Art. R. 2151-5. The provisions on public procurement and concessions (PPCCC, art. R. 3122-14, art. R. 3122-15, art. R. 3123-14 et art. R. 3123-21) are identical in this matter.
The defendant launched an award procedure for a concession of drinking water production and distribution services. The defendant rejected the applicant company’s application for lateness. The company in question defended itself on the grounds of a computer malfunction attributable to the contracting authority, as one of the two hypertext links for downloading the application files were not working. The applicant company then applied for a precontractual remedy before the Nantes administrative court or first instance, requesting, on the one hand, the annulation of the decision to eliminate its application and, on the other hand, that its application be reinstated, and the award procedure resumed at the application analysis stage. The request was rejected by the court, which considered that two hyperlinks were provided, one of which was working at the time. However, the court’s decision was based on public procurement provisions and not on concessions. The applicant company therefore referred the matter to the Conseil d’Etat.
This case illustrates known principles in an original way.
The first aspect relates to the error made by the pre-contractual judge in referring to the provisions relating to public procurement instead of those relating to concessions, which were applicable in this case it as regards the award of a drinking water production and distribution concession. For the Conseil d’État, “the rules recalled in point 5 which result from the aforementioned provisions of the PPCC applicable to concessions are identical to those which result from the provisions of Articles R. 2151-5 and R. 2132-9 of the PPCCC, applicable to public contracts”. Consequently, the fact that the author of the contested order referred to the latter provisions has no bearing on the validity of his reasoning. However, the rapporteur public indicated, in his conclusions, that he had hesitated because, not only did the judge confuse contracts and concessions, but he also confused tenders and applications, purely and simply repeating the terms of what had been judged in an RATP case concerning dematerialised offers transmitted within the framework of a public contract (CE 23 September 2021, RATP, n° 449250, B). However, while it is true that it has already been ruled that confusing the provisions relating to contracts with those relating to concessions does not lead to the irregularity of a court order (CE Section 21 June 2013, Communauté d’agglomération du pays de Martigues, n° 352427, A), it had never been ruled that the same applied when, in addition, tenders and applications were confused. For the rapporteur public, the provisions are identical, either in the letter (decrees 22 March 2019 appearing in appendices n° 6 to 8 of the public order code relating to dematerialisation), or in substance, regarding the elimination of offers and out of time applications. On this last point, the “identity” of the text is undoubtedly exaggerated since, while it is clearly specified that “Tenders received after the deadline are eliminated” (Art. R. 2151-5 PPCC), for concessions, the Code provides that: “The following are not admitted to participate in the rest of the procedure for awarding the concession contract: (…) 2° Candidates who submit an inadmissible application” (Art. R. 3123-21 PPCC), and that under the terms of Article R. 3123-14 PPCC: “The contracting authority shall set the deadline for the receipt of applications according to the nature, amount and characteristics of the works or services requested from the concessionaire”. In other words, the mandatory elimination of applications received after the deadline is implicit.
The second interesting aspect of the judgment concerns the question of the assessment of the public authority’s possible fault that could justify the illegality of rejecting the application out of time in case of malfunction of the website hosting the applications. The applicant put forward the fact that one of the two hyperlinks indicated in the consultation rules was defective. For the Conseil d’Etat, “by basing himself on the fact that in this case, one of the hypertext links allowed access to the computer network of the Atlantic’Eaumixed syndicate and that therefore, the contracting authority had to reject the application of the Saur company as late, even though another link appearing in the consultation regulations was defective, the judge of the Nantes administrative court did not commit an error of law”.
The rapporteur public was able to identify the reason for this malfunction: “Thus, because the word ‘then’ was added by mistake (without spacing) to the second e-mail address, the second link did not allow access to the platform. In other words, the burden of proof here lies with the applicant. But one should not generalise: We know that, in the aforementioned RATP case, the Conseil d’Etat considered that the burden of proof could be shared (“Firstly, by noting, through a sovereign assessment free of distortion, on the one hand, that the impossibility for Alstom-Aptis to transmit its dematerialised bid within the time limit was not attributable either to its computer equipment, nor to any fault or negligence on its part in downloading the documents making up its bid and, secondly, that RATP had not established that its submission platform was working properly and in deducing from this finding that the late submission of Alstom-Aptis’ bid was attributable to a malfunction of that platform, which prevented RATP from disregarding the bid as late, the interlocutory judge did not make any error in law”). The burden of proof of a computer malfunction, therefore, depends on the circumstances.